Per Kalifulla, ACJ. (Oral) 1. This appeal is directed against the order of the learned Single Judge dated 16.12.2009 passed in SWP No. 226/2003. 2. The appellant was serving as Dental Surgeon and at the relevant point of time he was posted at Sub District Hospital, Bureau, Budgam. He proceeded on 60 days' earned leave w.e.f. 15th April, 1997 in anticipation of its sanction. According to the official respondents, after the expiry of the said leave he failed to report for duty, but remained on unauthorized absence. The further case of the respondents is that he was served with a notice dated 29.01.1998, for which there was no response from the appellant. Three more notices dated 31st December, 1998, 24th August, 1999 and 6th June 2000, also did not yield any result and the appellant was stated to have remained on unauthorized absence. The appellant was, however, stated to have sent a telegram on 24th July, 2000, asking for extension of his leave. The respondents appointed the Additional Secretary to Government, Health and Medical Education Department to hold an enquiry into the unauthorized absence of the appellant by order dated 16.10.2000. The Enquiry Officer is said to have submitted his report confirming the unauthorized absence of the appellant. Based on the said report, by the impugned order dated 23rd March, 2001, the appellant's service was terminated by invoking Article 128 of J&K Civil Service Regulations w.e.f. 15.4.1997. 3. The learned Single Judge took a view that the guarantee as contained in Article 126 of the Constitution of J&K, is not available to the appellant, that there was considerable delay on the part of the appellant in challenging the order of termination and that the appellant did not come with clean hands while seeking to challenge the order of termination. 4. Before us Mr. Shah, learned senior counsel for the appellant primarily contended that when, admittedly, prior to the issuance of the impugned order of termination, when no opportunity was extended to the appellant to explain his stand as to what prevented him from not reporting for duty after the expiry of the initial period of leave, by virtue of Section 126 (2) of the Constitution of J&K, impugned order dated 23rd March, 2001 was ex-facie illegal, therefore, the learned Single Judge ought to have set aside the same. He, however, fairly submitted that in the light of the law laid down by the Hon'ble Supreme Court in Managing Director ECIL. Hyderabad and Anr. v. B. Kakunakar and others, 1993 4 SCC 727 , the respondent- State should be directed to proceed from the stage at which they failed to issue 2nd show cause notice proposing the punishment and after giving an opportunity of hearing to the appellant can be allowed to pass appropriate orders. 5. Mr. Magray, learned Senior Additional Advocate General, appearing for the respondents in his submission, however, contended that in the case of the appellant and similar such persons working in essential services remain absent unauthorizedly while at same time they were gainfully employed in foreign countries and that after the contract of service in such foreign employment is over they make an attempt to regain their employment in this State. He therefore, contended that as the appellant has failed to explain his unauthorized absence and also since no prejudice was caused to him, no indulgence can be shown to the appellant for submitting any explanation by issuance of 2nd show cause notice under Section 126 (2) of the Constitution of Jammu and Kashmir. 6. We have perused Section 126 (2) of the Constitution of J&K. It specifically provided that after holding an enquiry, in which concerned member of a Civil Service of the State is informed of the charges, he should be given a reasonable opportunity of being heard in respect of those charges and before imposing punishment an opportunity of making a representation on the penalty proposed should be extended to the concerned member of the Civil Service and only, thereafter the ultimate order of punishment can be imposed. 7. In the decision of the Hon'ble Supreme Court in Managing Director, ECIL, Hyderabad and ors v. B.Karunkar and ors, (1993) 4 SCC 727 , the Hon'ble Supreme Court considered as many as seven questions relating to denial of opportunity by disciplinary authority prior to the imposition of punishment after the receipt of report of the enquiry officer. While dealing with those questions the Hon'ble Supreme Court held that the delinquent employee would be entitled to the copy of the report of the enquiry officer even if the statutory rules do not permit the furnishing of the report or is silent on the subject. While dealing with those questions the Hon'ble Supreme Court held that the delinquent employee would be entitled to the copy of the report of the enquiry officer even if the statutory rules do not permit the furnishing of the report or is silent on the subject. The Supreme Court also held that whenever the service rules contemplate an enquiry before punishment is awarded and when the enquiry officer is not the disciplinary authority, the delinquent employee will have a right to receive the enquiry report, notwithstanding the nature of punishment. The Hon'ble Supreme Court indicated that the `doctrine of prejudice should be applied in such cases and the Court should not mechanically set aside the order of punishment on the ground that the report was not furnished or any 2nd show cause notice was not given. In the words of the Hon'ble Supreme Court as set out in para 31, it reads as under:- "The Court/Tribunal should hot mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The Courts should avoid resorting to short cuts. Since it is the Courts/Tribunal which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellant or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Court/Tribunal set aside the order of punishment, the proper relief that should be granted is to be direct reinstatement of the employee with liberty to the authority/ management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report." The above decision was subsequently relied upon by the Hon'ble Supreme Court in the decision reported in Divisional Manager, Plantation Division, Andaman and Nicobar Islands v. Munna Barrick and ors, (2005) 2 SCC 237 . In the above decision the Hon'ble Supreme Court after stressing the application of `prejudice doctrine' in such cases have held as under:- "The learned Single Judge of the High Court, therefore, in our opinion, seriously erred in not considering the matter from the aforementioned angle. Furthermore, in view of the submission made on behalf of the appellant herein, the court should have given an opportunity to complete the disciplinary proceeding from the stage of supplying a copy of the enquiry report to the workmen so as to enable them to raise a contention as regard correctness of the findings of the inquiry officer contained in the report as also on the quantum of punishment proposed to be imposed by the appellant while issuing a second show-cause notice." (Emphasis added) 8. Applying the ratio laid down by the Hon'ble Supreme Court in the above referred judgment and, since we find that before passing of the impugned order dated 23.03.2001, compliance of the mandatory requirement of the issuance of the 2nd show cause notice as stipulated under Section 126 of the Constitution of J&K, was not carried out, the impugned order cannot be sustained. In that sense there being a violation of Constitution provisions, as rightly contended by Mr. Zaffar Shah, learned senior counsel for the appellant, a severe prejudice was caused to the appellant, as he was prevented from making his say on the report of the enquiry officer as well as the quantum of punishment. However, we cannot close our eyes to the fact that after the expiry of the period of 60 days' leave said to have been sanctioned from 15th April 1997, the appellant was issued four notices calling upon him to explain his unauthorized absence. The hard fact remains that the appellant did not respond to the above said notices, except sending a telegram on 24th July, 2000, asking for extension of his leave. Though he applied for extension of his leave which he originally applied in the year 1997, the appellant did not take any steps for re-joining duty. Though the impugned order came to be passed on 23rd March, 2001, the challenge to the impugned order came to be made only in the year 2003. 9. Though he applied for extension of his leave which he originally applied in the year 1997, the appellant did not take any steps for re-joining duty. Though the impugned order came to be passed on 23rd March, 2001, the challenge to the impugned order came to be made only in the year 2003. 9. Therefore, even while setting aside the impugned order dated 23rd March, 2001, the appellant will not be entitled to any emoluments for the period of his unauthorized absence on the ground of his total inaction as well as on the ground of `no work no pay'. 10. In view of the above said circumstances, we can only direct the 1st respondent to recommence the proceedings from the stage of the report of the Enquiry Officer by issuance of 2nd show cause notice to the appellant along with the copy of the findings of the Enquiry Officer as well as the proposed punishment. On issuance of the 2nd show cause notice, the appellant shall furnish his reply within the time stipulated in the show cause notice. In the interest of justice, it is also directed that the appellant shall be given an opportunity of personal hearing to explain his stand and also to place whatever material available with him in support of his stand. The first respondent shall issue the 2nd show cause notice to the appellant within a period of two weeks from the date of receipt of a copy of this order and after considering the explanation of the appellant as well as his stand which he may be permitted to explain at the time of personal hearing, pass final order in accordance with law. The first respondent shall carry out the aforesaid exercise within three months from the date of receipt of copy of this order. 11. The appeal stands disposed of accordingly.